COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

TEXAS DEPARTMENT OF PUBLIC

SAFETY,

 Appellant,

v.

MERARDO BONILLA,

 Appellee. 

§

§

§

§

§

§

No. 08-13-00117-CV

Appeal from

41st District Court

of El Paso County, Texas

(TC # 2011-DCV10226)

O P I N I O N

This Texas Tort Claims Act case returns to us with a narrow focus. The remaining 

question is whether official immunity divests the trial court of jurisdiction over the lawsuit. To 

answer that question, we focus on whether the Texas Department of Public Safety’s (DPS) 

summary judgment evidence conclusively establishes the “good faith” element for official 

immunity, and if so, whether the innocent motorist who was injured during a police chase met 

his responsive burden. Stated in terms of the applicable test, did DPS conclusively show that a 

reasonable trooper, under the same or similar circumstances, could have believed it necessary to 

conduct the pursuit as the trooper did here, and if so, did the motorist present some evidence that 

no reasonable trooper would have pursued that course. We conclude that the appeal turns on our 

determination of what are the “same or similar circumstances,” and that determination is dictated 

by the standards which govern all summary judgment motions. Based on the summary judgment 

record here, we affirm the trial court’s denial of summary judgment. 
2

FACTUAL AND PROCEDURAL BACKROUND

The traffic accident giving rise to this lawsuit occurred on February 19, 2010, at the 

intersection of Montana and Magruder Streets in El Paso. DPS Trooper Cesar Cruz was 

traveling westbound on Montana Avenue, which at the point of the accident has three driving 

lanes running in each direction. Officer Cruz was in a marked DPS vehicle. When he was about 

a quarter of a mile from the intersection, a pickup truck traveling in the same direction changed 

lanes cutting the trooper off. The pickup weaved in and out of traffic, cutting off another 

vehicle. The speed limit on Montana Avenue in that area is 35 m.p.h. and Cruz estimated that 

the speeding truck was traveling at least 55 m.p.h.1 

Officer Cruz initially exercised his discretion to delay pulling the pickup over because he 

believed that there was no safe place to conduct a stop in that area. But when the pickup ran a 

red light at the Montana and Magruder intersection, Officer Cruz activated his overheard lights 

and accelerated to effect a traffic stop. As Trooper Cruz crossed the intersection, however, he 

collided with Merardo Bonilla who was traveling southbound on Magruder. Bonilla was injured 

and brought this suit against DPS to recover for his injuries.

DPS answered and after some discovery in the case, filed a plea to the jurisdiction and 

alternative motion for summary judgment which asserted several grounds. Two of the grounds 

are relevant to this appeal. First, DPS contended that the accident occurred while Trooper Cruz 

was reacting to an emergency situation. As such, Bonilla was required to prove, but could not

according to DPS, that Trooper Cruz acted with conscious indifference or recklessness. 

TEX.CIV.PRAC.&REM.CODE Ann. § 101.055(2)(West 2011)(requiring conscious indifference or 

recklessness to waive sovereign immunity when governmental employee is responding to 

 

1 An accident report notes the speed limit was 40 miles per hour at the intersection. Trooper Cruz’s affidavit states 

the speed limit was 35 m.p.h. The discrepancy is immaterial to our resolution of the case.
3

emergency call or reacting to emergency situation). Second, DPS contended that Trooper Cruz 

was protected by official immunity, and as such, it was not vicariously liable for the actions of its 

immune employee. The trial court denied the motion, and DPS pursued an interlocutory appeal 

to this Court.

On first hearing this matter, we affirmed the trial court and in doing so addressed three 

issues. Texas Dept. of Pub. Safety v. Bonilla, 481 S.W.3d 646 (Tex.App.--El Paso 2014), rev’d, 

481 S.W.3d 640 (Tex. 2015). In response to DPS’s motion, Bonilla had submitted a traffic 

investigation report prepared by DPS. We first held that the trial court did not err in overruling 

DPS’s objections to the traffic investigation report. Id. at 649-52. The report criticized Trooper 

Cruz’s actions and contradicted some aspects of his version of the accident. Id. Based on 

findings from the report, and another interoffice DPS memorandum, we next concluded that 

there was some evidence of recklessness sufficient to create a fact issue as to DPS’s

“emergency” response ground for summary judgment. Id. at 654-55.

With regard to official immunity, we noted that DPS carried the burden to show three 

elements of the affirmative defense: (1) that Trooper Cruz was performing a discretionary 

function; (2) that he did so in the course and scope of his duties; and (3) that he acted in good 

faith. Id. at 655. Bonilla did not contest the first two elements, and the only question at issue 

was whether Trooper Cruz was acting in good faith. Id. DPS had attempted to meet that element 

with an affidavit signed by Trooper Cruz, his incident report which was incorporated into the 

affidavit, and excerpts from his deposition. 

We held that the “same fact issues that defeat sovereign immunity under the emergency 

exception likewise defeat derivative immunity.” Id. at 655. Bonilla’s evidence showed that “a 

reasonably prudent police officer could determine” that the necessity to stop the speeding truck 

was outweighed by risk of causing an accident in proceeding through the intersection. Id. at 655-
4

56. Prior decisional law also required as part of the good faith analysis that a police officer 

consider alternative methods to pursuit. E.g. Univ. of Houston v. Clark, 38 S.W.3d 578, 588-89

(Tex. 2000). We alternatively held that DPS’s evidence was insufficient because Trooper Cruz

had not expressly discussed and explained why he discounted alternative courses of action to 

stop the speeding truck. 481 S.W.2d at 656. 

On petition for review, the Texas Supreme Court reversed and remanded the case back to 

us for reconsideration. Texas Dept. of Pub. Safety v. Bonilla, 481 S.W.3d 640 (Tex. 2015). The 

court left untouched our resolution of the emergency response issue, noting there was no 

meritorious issue for review. Id. at 646. DPS had also not challenged our holding regarding the 

admissibility of DPS’s accident investigation report. As for the remaining issue -- official 

immunity -- the Texas Supreme Court held that we erred in applying the wrong standard for 

good faith under the official immunity doctrine. Id. at 643-44. Rather than focus on whether a 

reasonably prudent trooper could have made a different decision, we should have considered 

whether no reasonably prudent trooper could have made the same decision in light of the need 

and risks. The court also held that DPS’s evidence implicitly addressed alternative courses of 

action. Id. at 645. The court remanded the case to us to reconsider the case under the correct 

legal standard.

OFFICIAL IMMUNITY AND THE GOOD FAITH STANDARD

A government official enjoys “official immunity” for discretionary actions done in the 

course and scope of employment, as long as the decisions are made in good faith. City of 

Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994). If a government official’s actions are 

protected by official immunity, the employer organization is protected by sovereign immunity 

when the suit is based on those same official acts. City of Beverly Hills v. Guevara, 904 S.W.2d 

655, 656 (Tex. 1995); DeWitt v. Harris County, 904 S.W.2d 650, 651 (Tex. 1995). 
5

The Good Faith Standard

In police pursuit cases, the test for good faith asks whether a reasonably prudent officer, 

under the same or similar circumstances, could have believed the need for the officer's actions 

outweighed a clear risk of harm to the public from those actions. Clark, 38 S.W.3d at 581; 

Wadewitz v. Montgomery, 951 S.W.2d 464, 466 & 467 (Tex. 1997); Chambers, 883 S.W.2d at 

656. Referred to as the “need-risk” test, the “need’ side of the equation refers to the 

circumstances requiring police intervention. Wadewitz, 951 S.W.2d at 467. Those 

circumstances might include the seriousness of the crime to which the officer is responding, the 

immediacy of need to prevent injury or loss of life or apprehend a suspect, and the alternative 

courses of action, if any, which might achieve a comparable result. Id. The “risk” side of the 

equation includes the public safety concern inherent in a police chase, including the risk and 

consequence of injury to innocent third parties, the likelihood of that harm, and whether that risk 

would be clear to a reasonably prudent officer. Id. The test is one of objective legal 

reasonableness, and focused on the facts and circumstances presented, rather than the mere 

conclusions of the participants or an expert witness. Clark, 38 S.W.3d at 581; Wadewitz, 951 

S.W.2d at 467; Chambers, 883 S.W.2d at 656. “[C]onclusory statements that a reasonable 

officer could or could not have taken some action will neither establish good faith on summary 

judgment nor raise a fact issue to defeat summary judgment.” Clark, 38 S.W.3d at 581.

If the movant establishes that the officer acted in good faith, the burden shifts to the 

opposing party to show that no reasonable officer would have made the same decision. City of 

San Antonio v. Ytuarte, 229 S.W.3d 318, 321 (Tex. 2007); Chambers, 883 S.W.2d at 656. In that 

way the test for good faith differs from a negligence standard where the question turns on what 

the prototypical reasonable person would have done. See Chambers, 883 S.W.2d at 656 n.5.

Accordingly, the official immunity question here includes two subparts. First, did DPS initially 
6

meet its burden to demonstrate that Trooper Cruz acted in good faith in deciding to initiate a stop 

of the pickup, which in turn required him to proceed through a red light at the intersection? 

Second, if the DPS met its burden, we must decide if Bonilla has presented some evidence which 

raises a fact issue in response.

DPS’s Evidence of Good Faith

DPS attached to its motion below the affidavit of Trooper Cruz, which in turn 

incorporates his accident report. It also included excerpts from his deposition. Those proffers 

inform us that the trooper observed a vehicle speed past and cut him off. The pickup then

weaved in and out of traffic, cutting off another vehicle. Trooper Cruz followed and observed the 

vehicle, foregoing an immediate stop because there was no place to have the pickup pull over. 

As they approached the intersection at Montana and McGruder, the light evidently cycled from 

green to red. Trooper Cruz observed the pickup run the red light. He then decided to pursue the 

vehicle through the intersection. His affidavit contends:

Before I entered the intersection of Montana and Magruder, I knew that there was 

moderate traffic, and no pedestrians in the roadway. It was 9:56 a.m. and daylight 

with no rain and the asphalt roadway was dry. I saw that all traffic was slowing at 

the intersection. I believe there was no vehicle in front of me in my lane at the 

time I entered the intersection because I did not have to move lanes to proceed 

into intersection.

Another section of his affidavit contends:

I cautiously proceeded into the intersection. I slowed and I was traveling 

approximately 35 m.p.h. into the intersection. This was not a high speed 

based on the totality of the circumstances. I saw that all traffic was 

stopped, including the traffic to my left who faced a green light. I looked 

to my right and there was no traffic there; therefore, no vehicle was 

entering the intersection from my right. Nothing was obstructing my view 

and I did not see the Plaintiffs vehicle at the intersection to my right. 

Trooper Cruz had just activated his emergency overhead lights, but had not yet turned on his 

siren when he collided with Bonilla who was coming from the right on Magruder.
7

Bonilla’ Responsive Evidence

Bonilla’s response included the report from the DPS’s investigation into this accident, 

which in turn was based in part on data from both vehicles' Event Data Recorders (“EDRs”), or 

“black boxes.” The data from Trooper Cruz’s unit retained only the last 2.5 seconds of data 

before the impact and recorded data in half second increments. For the first half second 

increment, the Trooper’s vehicle was traveling 39 m.p.h. and was at 100% full throttle. The 

vehicle continued at 100% throttle until the last half second interval, when it dropped to 77% 

throttle.

The DPS investigators concluded that Cruz’s vehicle was at 100% throttle when it was 

164.95 feet from the point of impact. The point of impact was 65 feet from the stop line at the 

intersection. From this, the DPS accident reconstruction team surmised that Trooper Cruz was at 

100% throttle 99.9 feet before the stop line of the intersection. He then had accelerated from 39 

to 49 miles per hour and did not reduce the throttle (to 77%) until one half second prior to 

impact.

2

This data conflicts with Trooper Cruz statement that he yielded at the stop line before 

proceeding through the intersection. The report also notes the existence of a building on the

corner of Montana and Magruder which created a “sight restriction for [Trooper Cruz] to fully 

observe all vehicles at the intersection he was approaching.” The building was situated so as to 

block the view to Trooper Cruz’s right, which was the direction from which Bonilla was 

traveling. Based on its investigation, the report concluded that Trooper Cruz failed to operate his 

vehicle with “due care” as required by the Texas Transportation Code. See TEX. TRANSP. CODE 

 

2 By contrast, Mr. Bonilla’s EDR showed the he was stopped with his foot on the brake until one second prior to the 

impact. He was going no faster than 11 miles per hour at impact. There was no dash-cam video of the accident 

itself, or the actions of the pick-up, because Trooper Cruz had -- contrary to DPS policy -- turned his dash-cam off 

when he had earlier received a personal phone call on his cell phone.
8

ANN. § 546.005 (West 2011)(authorized emergency vehicle are not exempted from duty to 

operate with appropriate regard for the safety of all persons, nor exempted from the 

consequences of reckless disregard for the safety of others).

3

Did the Texas Supreme Court Already Resolve the Initial Burden Question?

In supplemental briefing to this court, DPS contends that the Texas Supreme Court has 

already concluded that “all the evidence supports official immunity.” It bases this contention on 

one passage and one footnote from the opinion. The passage is a paragraph that begins with this 

sentence: “To establish good faith in this case, DPS relied almost exclusively on the trooper’s 

account of the incident, as reflected in his affidavit, deposition testimony, and incident report.” 

481 S.W.3d at 644. The rest of the paragraph summarizes DPS’s good faith evidence. DPS 

focuses on the introductory clause (“[t]o establish good faith in this case”) and reads it as the 

high court’s affirmation that DPS did in fact establish good faith. We read it, however, as an 

introductory clause explaining the context of what follows. If the Texas Supreme Court meant 

that the record already establishes good faith, it would have said so, and limited the remand to 

the singular question of whether Bonilla met his burden of showing that no reasonable officer 

could have believed that pursuit was appropriate.

4

 

DPS also directs us to footnote 23 of the opinion. Before the Texas Supreme Court, 

Bonilla argued that even if this court has applied the wrong standard, the discrepancies in 

Trooper Cruz’s version of events meant DPS had not established good faith. He argued that 

under Rule 166a, summary judgment evidence from an interested witness must be “clear, 

 

3

 In a separate report, a corporal with the DPS concluded: “It is my opinion that Trooper Cesar Cruz was traveling 

at an unsafe speed approaching a red light at an intersection. Trooper Cruz did not use the emergency vehicle's siren 

to warn persons approaching the intersection. Due to sight restriction and the high volume of traffic in that 

intersection, Trooper Cruz was traveling too fast to have avoided the crash.” 

4

For instance, the sentence that DPS focuses on could have been written as “DPS established good faith in this case 

by showing...” rather than “To establish good faith in this case DPS relied almost exclusively on ...”
9

positive and direct, otherwise credible and free from contradictions and inconsistencies, and 

could have been readily controverted.” TEX.R.CIV.P.166a (c). Bonilla then urged that the DPS’s 

evidence was contradicted, in part by the inconsistencies pointed out in the DPS investigation. 

We alluded to the same issue in our first opinion. 481 S.W.3d at 656. He additionally contended 

that Trooper Cruz’s testimony was not readily controvertible and should not be considered as 

competent summary judgment evidence. 

The Texas Supreme Court dealt with this issue in a footnote. After referencing Officer 

Cruz’ affidavit, the accident report, and deposition, the footnote stated: “Bonilla disputes the 

trooper’s version of events in several material respects, but Bonilla’s controverting evidence is 

not germane to the competence of DPS’s evidence in the first instance.” Id. at 481 S.W.3d at 

644, n.23. DPS contends this footnote signifies the high court’s view that the DPS investigation 

report does no more than show some other officer’s perception of the events, rather than 

overcome DPS’s initial evidence supporting good faith. In the context of the arguments that 

were advanced before the supreme court, we interpret the footnote to mean that Trooper Cruz’s

affidavit was competent summary proof that should be considered as would any summary 

judgment evidence. The footnote addresses the “competence” of the evidence, which parallel’s

Rule 166a(f)’s requirement that an affidavit must “show affirmatively that the affiant is 

competent to testify to the matters stated therein.” [Emphasis added]. Id. Had the Texas 

Supreme Court meant that none of the conflicting evidence which Bonilla brought forward plays

into the good faith test, it could have clearly said so. We therefore see our task as determining 

first whether DPS met its initial burden under the summary judgment standard of showing that a 

reasonable officer, under the same or similar circumstances, could have believed pursuit across 

the intersection was warranted. What those same circumstances are, is however, largely 

influenced by the summary judgment standard of review.
10

Standard of Review

A successful movant for summary judgment must negate the presence of all material 

issues of fact and establish the right to judgment as a matter of law. TEX.R.CIV.P. 166a(c); 

Diversicare General Partner, Inc. v. Rubio, 185 S.W.3d 842, 846 (Tex. 2005); Nixon v. Mr. 

Property Mgmt. Co., Inc., 690 S.W.2d 546, 548 (Tex. 1985). A defendant may do this by

conclusively: (1) negating one or more essential elements of his opponent's cause of action; or 

(2) proving each element of an affirmative defense. Randall's Food Markets, Inc. v. Johnson,

891 S.W.2d 640, 644 (Tex. 1995). Official immunity is an affirmative defense, therefore DPS 

shouldered the burden to prove each of its elements. Chambers, 883 S.W.2d at 653.

Evidence favorable to the non-movant will be taken as true in deciding whether there is a 

disputed issue of material fact. Fort Worth Osteopathic Hospital, Inc. v. Reese, 148 S.W.3d 94, 

99 (Tex. 2004); Tranter v. Duemling, 129 S.W.3d 257, 260 (Tex.App.--El Paso 2004, no pet.). 

All reasonable inferences, including any doubts, must be resolved in favor of the non-movant. 

Fort Worth Osteopathic Hospital, 148 S.W.3d at 99. Once the movant establishes its right to 

summary judgment, the burden then shifts to the non-movant to present evidence which raises a 

genuine issue of material fact, thereby precluding summary judgment. See City of Houston v. 

Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex. 1979).

DPS’s summary judgment motion is overlaid on it plea to the jurisdiction. This overlay, 

however, does not change the standard of review. In Texas Dept. of Parks and Wildlife v. 

Miranda, the court viewed the procedure for resolving an evidentiary based plea to the 

jurisdiction as mirroring that of a summary judgment motion under Rule 166a(c). 133 S.W.3d 

217, 228 (Tex. 2004). The court explained, “[b]y requiring the [governmental entity] to meet the 

summary judgment standard of proof in cases like this one, we protect the plaintiffs from having 

to ‘put on their case simply to establish jurisdiction.’” Id. If there is no fact question on the 
11

jurisdiction issue, the trial court will rule on the plea to the jurisdiction as a matter of law. Id.

Likewise, reviewing jurisdictional determinations may require appellate courts to examine the 

evidence supporting a claim in the same de novo manner it reviews a summary judgment. Id. at 

228.

DPS Never Met its Initial Burden for Good Faith

Applying the summary judgment standard which requires us to review the evidence in a 

light most favorable to the non-movant, we conclude that DPS never met the initial showing that 

a reasonable officer under the same circumstances could have believed that the initiation of the 

pursuit was reasonable. In reaching this conclusion, we first explain our view of the summary 

judgment evidence.

Trooper Cruz appropriately outlined the facts supporting the “need” aspect for his 

decision, and Bonilla in our view does not raise any challenge to that evidence. Accordingly, we 

take as uncontroverted these facts supporting the need to apprehend the pickup:

 The pickup violated state law regarding unsafe lane changes.

 The pickup violated state law for posted speed limits, traveling as much as twenty 

miles an hour over the posted speed limit in a commercial district.

 The pickup violated state law for stopping at a red light.

 The combination of these violations in a quarter mile stretch of road (all in the 

presence of a marked DPS unit) raises a legitimate inference that the pickup

created a risk to other motorists on the road.

 Officer Cruz had no opportunity to pull the vehicle over before the Magruder 

intersection and failing to pursue the pickup might have allowed it to evade arrest.

Bonilla did raise disputes on the “risk” side of the equation. Taking those uncontested portions 

of Trooper Cruz’s affidavit, and joining them with the contested portions viewed in the light 

most favorable to the non-movant, the following is our view of the risk evidence:

 In daylight conditions, the roadway was dry, and the weather was clear.
12

 The traffic was moderate and as Trooper Cruz made the decision to enter the 

intersection, there were no vehicles directly ahead of him, or already in the 

intersection, nor were there any pedestrians.

 The cross traffic to Trooper Cruz’s left was yielding, even though they had a 

green light (and thus had either seen the Trooper’s flashing lights or were still 

startled from the pickup running the red light).

 Trooper Cruz had his lights flashing, but did not have his siren engaged.

 Trooper Cruz had an obstruction to his right side that prevented him from seeing 

all of the traffic in that direction.

 Trooper Cruz began accelerating his vehicle at least 99.9 feet before the stop line 

of the intersection, and continued to do so until one-half second before impact. At 

99.9 feet from the intersection, he was traveling 39 miles per hour, and he reached 

49 miles per hour before the last half second prior to impact.

 If Trooper Cruz slowed to check for cross traffic, he would have done so more 

than 99.9 feet back from the stop line at the intersection, or once he was already in 

the intersection.

5

 Trooper Cruz did not see Bonilla’s vehicle which was stopped and then proceeded 

into the intersection, but the record is unclear whether this because of the 

obstruction, or just simply by honest mistake.

Under this set of facts DPS was required to show that a reasonably prudent officer, under 

the same or similar circumstances, could have believed the need for this pursuit outweighed the

risk of harm to the public. Clark, 38 S.W.3d at 581; Wadewitz, 951 S.W.2d at 466; Chambers,

883 S.W.2d at 656. We have no quibble with the Trooper’s assessment of the need to detain the 

pickup. We conclude, however, that DPS has not presented any evidence that taking the risk 

 

5 We consider but reject the possibility that Trooper Cruz’s claim that he slowed at the stop line might be a 

reference to the reduction in throttle in the last half second prior to impact. Simple math would show that to be 

incorrect. The last and greatest speed of the unit was 49 miles per hour. Given that speed, he traveled no less than 

35.93 feet in the last half second prior to the collision. Objectively, we know that because at 49 m.p.h. a vehicle 

travels 258,720 feet in an hour (49 times 5280, the number of feet in a mile). In a minute, the same vehicle would 

travel 4,312 feet (258,720 divided by 60, the number of minutes in an hour). In a half second, the same vehicle 

would travel 35.93 feet (4,312 divided by 120, the number of half seconds in a minute). The impact occurred at a 

point 65 feet from the stop line at the intersection. It then follows that the Trooper did not reduce the throttle until 

he was already some thirty feet into the intersection.
13

assessment facts as the summary judgment record shows them to be, that a reasonable officer 

could have come to the same decision.

Trooper Cruz’s affidavit states that he “weighed the risks versus the benefits” and 

concluded the risks were minimal compared to stopping the pickup. But in explaining the risks, 

he outlines and presumably relies on two facts that are in dispute. He avers that nothing was 

obstructing his view. He also assumes he was slowing as he entered the intersection.6 His 

ultimate conclusion is tied to the facts that he claims. If those facts prove to be incorrect, and if

they are material, the conclusion must fail as well. See Green v. Alford, 274 S.W.3d 5, 20 

(Tex.App.--Houston [14th Dist.] 2008, pet. denied)(discounting expert’s risk-need assessment

when the expert assumed the truth of a material disputed fact); Harris County v. Smyly, 130 

S.W.3d 330, 335 (Tex.App.--Houston [14th Dist.] 2004, no pet.)(disputed facts regarding 

amount of traffic, speed of police unit, and whether an open lane existed for police officer 

precluded reliance on expert and officer’s claim of good faith); cf. Burroughs Wellcome Co. v. 

Crye, 907 S.W.2d 497, 499 (Tex. 1995)(“When an expert's opinion is based on assumed facts 

that vary materially from the actual, undisputed facts, the opinion is without probative value and 

cannot support a verdict or judgment.”). Nor are we bound by Trooper Cruz’s conclusory claims 

that he was acting in good faith. Wadewitz, 951 S.W.2d at 466. DPS presents no other summary 

judgment evidence that would show that a reasonable officer could have thought it appropriate to 

begin accelerating 99.9 feet before an intersection, when the view of at least some of the traffic 

to the cross street was blocked, and the vehicle’s siren was not engaged.

 

6 His affidavit states: “I cautiously proceeded into the intersection. I slowed and I was traveling approximately 35 

m.p.h. into the intersection.” His statement, which he incorporates into his affidavit, states “I yielded at the white 

line before crossing the intersection; I then scanned for traffic and clearance.... After I had scanned my 

surroundings, I proceeded through the intersection with emergency lights on while turning power on to the camera 

system.” 
14

Without any witness offering that opinion, we are unwilling to conclude as a matter of 

law that a reasonable officer might make that same calculation. We acknowledge a line of cases 

where courts have upheld an official’s claim of good faith following an intersection collision 

during an emergency response. In none of those cases, however, is there the confluence of the 

officer failing to pause just before entering the intersection, not having a clear field of vision for 

cross traffic, and not providing an audible warning to surrounding motorist. Cf. City of 

Pasadena v. Kuhn, 260 S.W.3d 93, 99-100 (Tex.App.--Houston [1st Dist.] 2008, no pet.)(finding 

good faith when the officer, while responding to house fire, had activated his emergency lights 

and siren, in addition to slowing before proceeding through the intersection); Smith v. Janda, 126 

S.W.3d 543, 545-46 (Tex.App.--San Antonio 2003, no pet.)(evidence held insufficient to 

establish recklessness when ambulance driven to emergency had lights and sirens activated as it 

approached intersection, and it slowed before proceeded into intersection); City of San Angelo 

Fire Dept. v. Hudson, 179 S.W.3d 695, 700-01 (Tex.App.--Austin 2005, no pet.)(officer’s 

affidavit stated that he was driving below the speed limit and significantly slowed at intersection

to ten miles per hour before proceeding through it, all while having siren and lights activated

supported good faith claim).

Certainly not every contradiction of an official’s perception of events will undermine a

good faith claim. In Ytuarte, for instance, the court of appeals had affirmed the denial of 

summary judgment in part because the non-movant had presented affidavit evidence from an 

independent witness that disputed one of the claims made by the pursuing officers. 229 S.W.3d 

at 319-20. The Texas Supreme Court reversed the court of appeals on that holding because the 

intermediate court never explained how the particular inconsistency in the summary judgment 

proofs impacted the good faith inquiry. The high court concluded its relevance was “not

immediately apparent.” Id. at 320. 
15

Here, however, the contested issues of fact are whether Trooper Cruz paused before 

entering the intersection (as many a motorist has observed an emergency vehicle do), and 

whether he had a clear view of cross traffic. Both of these are presumptively important 

components of the risk equation. They bear directly on the level of risk to cross traffic, both as 

to the risk of accident and the severity of an accident. The balance is distorted further by the 

acknowledged lack of a siren. At least some motorists traveling from the Trooper Cruz’s right 

could not see the trooper, just as he could not see them, because of the building. They would 

have no audible clue that the DPS unit was about to enter the intersection, going somewhere 

between 39 and 49 miles per hour. These factual issues change the need-risk balance and DPS 

must prove in the summary judgment context that given these disputes a reasonable trooper 

might have still have believed that is was appropriate to initiate the traffic stop.

In the heat of the moment an officer might well misapprehend an event, and courts should 

not punish them for doing so, otherwise an official might be reluctant to discharge his duties. 

Telthorster v. Tennell, 92 S.W.3d 457, 463 (Tex. 2002)(officer’s mistaken belief that suspect had 

a weapon did not preclude good faith immunity). But nor do we read the Texas Supreme Court’s 

jurisprudence as requiring a court to slavishly accept everything in an official’s affidavit under 

the guise that it is what the official thought he or she saw. Because the summary judgment 

record, viewed in the light most favorable to Bonilla demonstrates that material factual 

assumptions which underpin Trooper Cruz’s claim are disputed, we conclude that Trooper 

Cruz’s assessment of the need-risk balance, which is the only evidence of that assessment, 

cannot support summary judgment.

Having concluded that DPS never met its initial burden to show good faith, we need not 

reach the second question of whether Bonilla raised a fact issue on whether no reasonable officer 

would have initiated the pursuit. 
16

Corroboration Requirement

Bonilla also argues in his supplemental briefing that as a matter of public policy, an 

officer’s claim of good faith should be supported by more than the officer’s own testimony. 

Rather, he contends that some corroboration should be required. Bonilla cites no authority 

directly supporting this contention and we have found none.

We decline to create such a standard for several reasons. First, the argument is a shade or 

phase of the argument Bonilla unsuccessfully advanced before the Texas Supreme Court. 

Bonilla there argued that an officer’s claim of good faith could not be proved by the officer’s 

own affidavit because the opinions of the officers were not “readily controvertible” as required 

by the summary judgment standard. See TEX.R.CIV.P.166a(f). The supreme court’s footnote 23 

appears to reject that claim. Second, we are confident that the discovery process can ferret out 

any disingenuous claims by officials that do not square with the objectively provable facts of the 

case. Finding no support for the corroboration requirement urged by Bonilla, we decline his 

invitation to invent one.

CONCLUSION

We had previously overruled DPS’s Issues One and Three and affirm those rulings for 

the reasons stated in our original opinion. We today overrule Issue Two because DPS has not 

presented conclusive evidence that a reasonable trooper, under the same or similar factual 

circumstances, could have believed that it was appropriate to enter the intersection as Trooper 

Cruz did here. We affirm the judgment of the trial court below.

October 12, 2016

ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rodriguez, and Hughes, JJ.

Hughes, J., dissenting